Appellants Sher Muhammad and his son Asmatullah, were sent up for trial by Police Station Gungial, District Khushab, for offences under section 302/307/34, P.P.C. Sessions Judge, Khushab, vide his judgment dated 15-12-1988 convicted and sentenced. Sher Muhammad under section 302, P.P.C. To imprisonment for life and a fine of Rs.2,000 or in default one year R.I. He was further directed to pay compensation of Rs.10,000 to the legal heirs of the deceased or in default six months' R.I. Asmatullah was acquitted for the charge under section 302, P.P.C but was convicted under section 307, P.P.C to 1-1/2 years' R.I. With a fine of Rs.4,000 or in default six months' R.I. Both the appellants have appealed. Khaliq Dad complainant has also filed a revision seeking death sentence to both the appellants. Both the matters will be disposed of by this judgment.
2. Prosecution story in brief as disclosed in the F.I.R. Exh. P.J. Lodged by Khaliq Dad is that the first informant's cousin Sarfraz had a house adjacent to the house of Sher Muhammad. One and half years before the registration of case said Sarfraz had abducted Mst. Hayat Bibi daughter of Sher Muhammad. She was later returned with the intervention of the Panchayat. Said Sher Muhammad murdered his daughter. He was challaned and ultimately acquitted. Sarfraz cousin of the first informant out of fear had left the house adjacent to Sher Muhammad and shifted to his Dera. His household effects were still in the house. On 18-6-1986 Sarfraz asked the first informant to bring his luggage from his house as he could not go there. Therefore, the first informant with his brother Ghulam Gillani and Allah Dad with Ahmed Yar went to the house of said Sarfraz for taking out his luggage: In the meanwhile at about 3-00 p.m. Sher Muhammad armed with .12 bore gun with Asmatullah his son armed with knife came in front of the house. Sher Muhammad appellant raised a Lalkara that he would teach them a lesson for helping Sarfraz and fired hitting Ghulam Jillani on the back of his head whereupon he fell down. He fired another shot, which did not hit anyone. Allah Dad caught hold of Sher Muhammad whereupon Asmatullah gave two knife blows on the back of Allah Dad who also fell down. The first informant with Ahmed Yar requested the assailants to spare them whereupon both the assailant's armed while raising Lalkaras went inside the house by threatening that if anybody came near them he would also be done to death. Both the injured were transported to Civil Hospital Quaidabad whereas Ghulam Jillani expired because of the injuries.
F.I.R. Exh. P.J. Was lodged by Khaliq Dad, P.W.6 on 18-6-1986 at 4-00 p.m., with regard to an occurrence which had taken place on the same day at 3-00 p.m. In the house of one Sarfraz in village Uttra within the jurisdiction of Police Station Gungial District Khushab. It was recorded by Taj Muhammad, A.S.I., P.W.8. Place of occurrence was at a distance of two furlongs from the police station.
Taj Muhammad, A.S.I., after registration of case came to the hospital and prepared injury statement, Exh. P.K. And inquest report, Exh. P.L. In respect of the deceased. He sent the dead body for autopsy. He prepared injury statement Exh. P.M. Of Allah Dad injured and got him medically examined. He came to the spot and secured blood-stained earth vide memo Exh. P.F. And blood-- stained earth Exh. P.G. From the place where Ghulam Jillani had received injuries. He also secured six pellets and three wads vide memo. Exh. P.H. He took into possession last-worn clothes of the deceased vide memo. Exh. P.A. And blood--stained clothes of Allah Dad P.W. Vide memo Exh. P.B.
Thereafter, the investigation was transferred to Bashir Ahmed, S.I. P.W.9, who arrested both the appellants on 23-6-1986. On 30-6-1986 Asmatullah accused while in custody got recovered knife P.8 which was secured vide memo Exh. P.I. After usual investigation he challaned the accused.
Dr. Pirzada Syed Muhammad Alam Shah, P.W.3, on 18-6-1986 conducted the post-mortem examination on the dead body of Ghulam Jillani and found the following injuries:- (1)A fire-arm lacerated wound 1/2" x 1/4" through and through on the front upper left side of head 4" above the left ear.
(2)A fire-arm lacerated wound 1/2" x 1/2" through and through on the back of 1-1/4" apart from injury No.1.
(3)A fire-arm lacerated wound 2-1/2" x 1/2" x through and through grazing type on the upper side front of the head.
(4)A fire-arm lacerated wound 3/4 x 1/2" x through and through on the upper side back of the head 1/2" from injuries Nos.1 and 3.
(5)A fire-arm lacerated wound 1/4" x 1/4" x through and through on the right upper side of the head 3-1/2" above the right ear.
(6)A fire-arm lacerated wound 1" x 3/4" x through and through on the back right side of the head.
Injuries Nos. 1, 2, 3, 4, 5 and 6 coincided.
(7)An abrasion 1/2" x 1/4" on the bride of the nose, (8)An abrasion 1-1/4" x 3/4" on the left side of the forehead.
(9)An abrasion 1" x 1/4" on the outer canthus of left eye.
(10) Three abrasions each 1/4" x 1/4" on the front of the right knee joint.
(11) Four abrasions each 1/4" x 1/4" on the front of the left knee joint.
On the same day he also medically examined Allah Dad P.W. And found the following injuries:
(1) An incised stab wound 1" x 1/6" x deep into chest deep on the back right side of the chest in a middle vertically. .
(2) An incised stab wound 2-1/4" x 1/4" x 3/4" deep on the back of left aliac region transversely.
(3) An incised wound 1/2" x 1/6" x 1/4" deep on the left index on the left index finger middle.
(4) An abrasion 1-1/2" x 1-1/4" on the front of the left knee joint.
Injuries Nos.1 and 2 were kept under observation. The rest were declared simple. Injuries Nos.1 2 and 3 were caused with sharp-edged weapon and 4 was with blunt weapon.
3. The prosecution in support of its case had produced nine witnesses in all. Muhammad Amir, H.C., P.W.1 kept two sealed parcels of blood-stained earth in the Malkhana. Muhammad Shafi, F.C., P.W.2 had delivered sealed parcels in the office of Chemical Examiner, Lahore. Dr. Pirzada Muhammad Alam Shah, P.W.3, had conducted the post-mortem examination and medically examined Allah Dad P.W. Muhammad Saleem, Draftsman, P.W.4, had prepared site plans Exhs. P.E. And P.E./1. Ahmad Khan, P.W.5, had witnessed the recovery of blood--stained earth from the spot. He had also witnessed the recovery of blood-stained knife in respect of Asmatullah and signed both the memos. The ocular account was furnished by Khaliq Dad and Allah Dad, P.Ws.6 and 7 respectively.
The case was initially investigated by Taj Muhammad, A.S.I., P.W.8. The investigation was completed by Bashir Ahmed, S.I., P.W.9.
At the conclusion of the prosecution evidence both the appellants were examined without oath.
They refuted the prosecution allegations and pleaded innocence. They, however, neither produced any defence evidence nor volunteered to appear in their defence on oath.
It was contended by learned counsel for the appellants that no reliance on the prosecution version as given in the F.I.R. Could be placed because the same was recorded after consultation and deliberation. Argued that the motive as alleged was not proved because it had come in the evidence that Sarfraz had left his house 1-1/2 years earlier but lived in the same vicinity, therefore, if the appellants had any motive they could easily do away with Sarfraz during this period. Further argued that there was no motive against the deceased. It was argued that the ocular account could not be relied upon because the same stood contradicted by the medical evidence. It was asserted that all the witnesses were unanimous that the deceased had received injuries on the back of his head, but according to the medical report the injuries received by the deceased were on front of the head and exit wounds on the back of head. Contended that it was a serious contradiction, which rendered the ocular account worthless. Asserted that the defence version was more plausible and. The same should have been relied upon. Contentions were resisted by learned counsel for the State as well as for the complainant. It was argued by learned counsel for the complainant that there was no contradiction between the ocular account and the medical evidence because the doctor had not stated anywhere that the injuries on the front of the head were wounds of entries. Submitted that the defence versions were not worth reliance because the occurrence had taken place in broad daylight and, in such circumstances substitution is almost impossible. Argued that there was neither any enmity nor any motive with the prosecution witnesses to falsely implicate the appellants.
4. I have heard the learned counsel and gone through the evidence. The prosecution in order to establish its case has mainly relied upon the ocular account and sought corroboration from the medical evidence and the motive. As far as the motive is concerned, it has been furnished by Khaliq Dad and Allah Dad, P.Ws.6 and 7 respectively. Both of them stated that their maternal- cousin had abducted the daughter of Sher Muhammad appellant who was returned with the intervention of the Bradari. Later on the appellant murdered his daughter. He was tried and acquitted. Said Sarfraz had left the house out of fear. On the fateful day they went to collect the belongings of said Sarfraz. When they were in the house both the appellants armed came there- and raised Lalkaras that they would teach them a lesson for helping Sarfraz. It is admitted that the appellants had murdered his daughter because she had eloped with Sarfraz. It has not been challenged that said Sarfraz was neighbour of the appellants. It was also not challenged that said Sarfraz had left the house and started living at his dera. 83, this it can safely be concluded that out of fear he had -left the house. The witnesses had also asserted that before firing they uttered the word that they would teach a lesson for helping Sarfraz. This part of the statement was not challenged in cross-examination. In these circumstances I hold that the motive stands proved.
5. The doctor who had examined the deceased had found six fire-arm injuries on his person. He had not' indicated that which were the wounds of entry and which of them were wounds of exit.
Learned counsel had argued that the wounds found on the forehead were wounds of entries and the injuries found on the back of head were wounds of exit. Therefore, according to him, it belies the ocular version. The argument has been considered but x am not impressed with the same. The fact remains that the deceased did receive fire-arm injuries, whether it was on the back of his head or on the front would not make much difference in the circumstances of the case because all the witnesses had asserted that before opening the attack the appellants had raised Lalkara whereupon the deceased got up from his cot and took one or two steps when fired at. It is but natural that when Lalkara was raised everybody must have run to take shelter and in such circumstances it may not have been possible to notice the exact location of injuries. In these circumstances I hold that the medical evidence does not belie the ocular account.
6. As far as the ocular account is concerned, Khaliq Dad and Allah Dad, P.Ws. Are real brothers of the deceased. The defence in cross-examination had accepted that the deceased and the witnesses had come to the house of Sarfraz. The time of occurrence and place of occurrence are also accepted by the defence. The only plea of the defence is that the appellant Sher Muhammad had not fired at the deceased but one Ameer, a School Teacher, had fired at him because he had tried to molest his were. The presence of eye-witnesses is further established from the fact that Allah Dad was himself injured. Both of them have given a detailed account of the occurrence. They were cross-examined at length but the defence has not even suggested that they were not present at the spot nor any motive for false involvement of the appellants was suggested to them.
The only suggestion given to the witnesses was that one Ameer had murdered the deceased. This plea on the face of it is not acceptable because nothing has been brought on the record that the witnesses had any enmity with the appellants, which could prompt them to leave the real culprits and substitute the appellants. The defence version even otherwise is not acceptable because according to the defence version one Ameer fired at the deceased and ran away. After going through the statements of both the witnesses very carefully, I am convinced that they are truthful witnesses and can safely be relied upon.
The assertion of learned counsel for the appellant that the FIR was registered after deliberation is also without force. It has come on the record that the doctor had changed the time of examination of the injured and death of the deceased. Earlier, he had given different time but subsequently changed it. I have noticed that after changing the time he had initialled the documents and admitted it in the Court as well. Even otherwise this fact alone would not affect the prosecution case because the time of occurrence and place of occurrence had already stood admitted by the defence, therefore, there was no occasion for the prosecution to change the time, which is also admitted by the defence.
As far as the revision is concerned, I find no force in it. Asmatullah appellant had caused injuries to Allah Dad when he caught hold of Sher Muhammad appellant. In such circumstances Asmatullah appellant being son of said Sher Muhammad stepped forward to rescue his father. This would not mean that he shared the common intention with his father Sher Muhammad for killing Ghulam Jillani. Sher Muhammad appellant had committed the murder because of family honour for which sentence of death cannot be justified. For these reasons the revision is also dismissed.
7. For what has been discussed above, I hold that the prosecution has been able to prove its case beyond doubt. Therefore, the appeal fails which is accordingly dismissed.